Summary
noting probable cause and exigent circumstances were present due to “the odor of marijuana, the marijuana stems and seeds observed, and the remnants of cigars” found in the car
Summary of this case from State v. CageOpinion
No. 04-0727.
March 16, 2005.
Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.
Defendant-appellant, Jonathan Cleophas Peterson, appeals from his conviction on several controlled substance offenses. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, William E. Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Defendant-appellant, Jonathan Cleophas Peterson, was convicted after a jury trial of five controlled substance offenses: possession with intent to deliver a controlled substance (less than ten grams of crack cocaine), a class C felony, in violation of Iowa Code sections 124.401(1)(c)(3), 124.206(2)(d), and 703.1 (2003); possession with intent to deliver a controlled substance (powder cocaine), a class C felony, in violation of sections 124.401(1)(c)(2), 124.206(2)(d), and 703.1; possession with intent to deliver a controlled substance (marijuana), a class D felony, in violation of sections 124.401(1)(c)(2), 124.204(4)(m), and 703.1; and two counts of failure to affix a drug tax stamp, class D felonies, in violation of sections 453B.1(3)(a) and (d), 452B.3, 453B.7(2) and (4), 453B.12, and 703.1. Defendant appeals the convictions, claiming he received ineffective assistance of counsel. He argues counsel was ineffective for failing to file a motion to suppress evidence that was seized in a second search of his coat. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Defendant was traveling as a passenger in a vehicle that was pulled over by an Iowa State Patrol trooper for having illegally tinted windows and lacking a front license plate. Upon approaching the vehicle, the trooper quickly detected the odor of cologne and marijuana. The driver consented to the trooper's request to search the vehicle. The passengers were asked to exit the vehicle.
In the course of searching the front-seat area of the vehicle the trooper noticed loose marijuana stems and seeds, as well as remnants of cigars, which he testified is consistent with making "blunts." The trooper then searched the backseat area of the car where he found a pile of clothing. Among the clothing was a black coat, which seemed unusually heavy. In one pocket of the coat the trooper found a bottle of a particular powder, which he testified is often used as cutting agent — it is mixed with cocaine to increase the volume for sale. Inside the bottle, a clear sack of white crystal powder, apparently cocaine, was found. Also in the coat, a white plastic sack, about the size of a softball, was found. When the trooper cut the sack open he found twenty-three packaged clumps of a white powder substance that he believed to be cocaine.
After finding the drugs, the trooper took the men into custody. The trooper then sought to determine to whom the coat belonged. Defendant claimed ownership of the coat and the drugs that were found in the coat. The men were then transferred to a station to be interviewed. Agents from the Iowa Division of Narcotics Enforcement were called in to interview the men. Defendant, in the course of his interview, admitted to having crack cocaine. This surprised the agent who had observed the drugs collected and had not seen any crack cocaine. The agent asked the trooper to reexamine the black coat, which was still in possession of law enforcement. In reexamining the coat, the trooper observed a hole in the lining of the coat, which he reached inside. He was able to pull out baggies of marijuana and crack cocaine. He then cut the lining and removed more baggies.
In total, twenty-three individually wrapped bags of cocaine, thirty-seven bags of crack cocaine, and eleven bags of marijuana were found in defendant's coat. When shown the contraband that was recovered, defendant admitted that he recently bought one-half ounce of marijuana, three ounces of cocaine, and one-half ounce of crack cocaine. Defendant stated he had already sold some of the drugs that he had purchased.
Defendant was convicted, after a jury trial, of five controlled substance offenses: possession with intent to deliver a controlled substance (less than ten grams of crack cocaine), a class C felony, in violation of sections 124.401(1)(c)(3), 124.206(2)(d), and 703.1 (2003); possession with intent to deliver a controlled substance (powder cocaine), a class C felony, in violation of sections 124.401(1)(c)(2), 124.206(2)(d), and 703.1; possession with intent to deliver a controlled substance (marijuana), a class D felony, in violation of sections 124.401(1)(c)(2), 124.204(4)(m), and 703.1; and two counts of failure to affix a drug tax stamp, class D felonies, in violation of sections 453B.1(3)(a) and (d), 452B.3, 453B.7(2) and (4), 453B.12, and 703.1.
II. ANALYSIS.
Defendant contends he received ineffective assistance of counsel because his trial counsel failed to seek suppression of the evidence seized in the second search of the coat.
Because a claim of ineffective assistance of counsel implicates constitutional rights, our review is de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
To establish an ineffective assistance of counsel claim, the defendant must show (1) counsel failed to perform an essential duty, and (2) this failure resulted in prejudice. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999); State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984).
Ineffective assistance claims are generally reserved for postconviction relief actions; however, we will resolve them on a direct appeal of the criminal conviction in two situations:
If the record on appeal shows . . . that the defendant cannot prevail on such a claim as a matter of law, we will affirm the defendant's conviction without preserving the ineffective-assistance-of-counsel claims. Conversely, if the record on appeal establishes both elements of an ineffective-assistance claim and an evidentiary hearing would not alter this conclusion, we will reverse the defendant's conviction and remand for a new trial.
State v. Martinez, 679 N.W.2d 620, 625-26 (Iowa 2004) (citations and quotation marks omitted).
The defendant must show his attorney's performance fell below an objective standard of reasonableness so that the attorney failed to fulfill the role in the adversary process that the Sixth Amendment envisions. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). A strong presumption exists that counsel's performance falls within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving by a preponderance of the evidence both elements of a claim of ineffective assistance. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
To determine whether defendant received ineffective assistance of counsel, we must determine whether there is any merit to defendant's claim that the evidence seized in the second search of the coat should have been suppressed. Counsel is not ineffective for failing to pursue a meritless issue. State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003) (citing State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999)).
We engage in a two-step analysis to determine whether an unconstitutional search and seizure, in violation of the Fourth Amendment, was conducted. First, the defendant must show that he had a legitimate expectation of privacy in the area searched. State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995) (citing United States v. Salvucci, 448 U.S. 83, 92, 95, 100 S. Ct. 2547, 2553, 2554, 65 L. Ed. 2d 619, 628, 630 (1980)). "The determination of whether a person has a legitimate expectation of privacy with respect to a certain area is made on a case-by-case basis, considering the unique facts of each particular situation." State v. Breuer, 577 N.W.2d 41, 45 (Iowa 1998). Further, the expectation of privacy must be one that society considers reasonable, an issue that involves reference to property law or to understandings that are recognized and permitted by society. State v. Ortiz, 618 N.W.2d 556, 559 (Iowa 2000). Second, if the defendant had a legitimate expectation of privacy, we must then determine whether the State unreasonably invaded the protected interest. Id. (citing State v. Becker, 458 N.W.2d 604, 608 (Iowa 1990)). We conclude that defendant did not have a legitimate privacy interest in the coat after it had been seized as evidence by the police. Therefore, there is no merit to defendant's claim that the evidence seized in the second search of the coat should have been suppressed. Defendant did not receive ineffective assistance of counsel.
The trooper's comprehensive search of the vehicle was appropriate due to the consent given to search the vehicle and the probable cause and exigent circumstances present (the odor of marijuana, the marijuana stems and seeds observed, and the remnants of cigars that were found). See State v. Longo, 608 N.W.2d 471, 473 (Iowa 2000). In the course of the comprehensive search the trooper found individually packaged bags of cocaine in the pocket of the coat. This clearly justified seizing the coat and provided probable cause to arrest defendant, who admitted to owning the coat, for possession with intent to deliver a controlled substance.
Once the coat was seized as evidence of the crime, defendant's privacy interest in coat was lost, for at least a reasonable time and to a reasonable extent, so that police could search the coat evidence. See U.S. v. Edwards, 415 U.S. 800, 808-09, 94 S. Ct. 1234, 1239-40, 39 L. Ed. 2d 771, 778 (1974) (quoting U.S. v. DeLeo, 422 F.2d 487, 493 (1st Cir. 1970)) ("While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence"). In the present case, we hold defendant did not have a privacy interest in the coat at the time of the second search. Defendant's contention that the evidence seized in the second search of the coat is without merit. Therefore, defendant did not receive ineffective assistance of counsel.